Obstacles to Registration and Citizenship Confirmation Threaten to Create a New Wave of Statelessness in Ukraine: A Preliminary Legal Analysis
Evan Harary, Fulbright Scholar at Yaroslav Mudryi National Law University. His project concerns the implementation of passportization and statelessness recognition efforts among displaced people, with particular attention to displaced Roma. A graduate of the University of Michigan Law School, Evan has experience in immigration and asylum law, administrative law, and international humanitarian law.
The Russian-backed occupation of Ukraine has taken seven percent of Ukraine’s territory and, to date, over 14,000 lives. As the first generation of children born in non-government controlled territory (“NGCA”) comes of age, and an increasing number of residents acquire Russian citizenship through means of disputed legality, the occupation now threatens to sever the effective ties between Ukraine and hundreds of thousands of its citizens. In many cases, this will leave affected individuals stateless, as a matter of both international and Ukrainian law. It is, therefore, imperative that Ukraine take pre-emptive steps to prevent the advent of mass statelessness, both to fulfill its legal obligations to protect the rights of its de jure citizens, and to maintain effective integration of the NGCA population.
I. The Phenomenon of Statelessness in Situ in Ukraine.
Ukrainian law grants citizenship to those born in the territory of Ukraine to parents with legal presence there, those who have a parent who is a citizen of Ukraine, and those who were legally residing in the territory of Ukraine in 1991, when Ukraine gained independence from the Soviet Union. The UNHCR estimates that there are around 35,0000 stateless persons reside in Ukraine; an unknown but likely significant number of Ukrainians lack documents that might confirm their citizenship, and are therefore at risk of statelessness. In order to confirm the fact of their citizenship and obtain national identification, people belonging to the latter category must, in a typical case, approach the State Migration Service (“SMS”) with evidence of their identity and facts that prove their citizenship.
Regional and even local offices of the SMS differ in what evidence they accept as dispositive of a person’s citizenship; some accept only a Soviet passport registered, as of 1991, to the Ukrainian Soviet Socialist Republic, while others will consider work, educational, and medical documents, as well as the testimony of live witnesses. Even where the SMS will accept a broader array of evidence, obstacles remain. In particular, institutions that might issue evidence corroborating an individual’s citizenship will not do so unless the requesting party has photo identification.
Those who lack evidence acceptable to their local SMS must resort to the courts to establish facts proving their citizenship. Upon a successful showing, the courts will issue an order recognizing the individual’s identity and/or a fact that proves their citizenship. The individual can then apply to the SMS with that order to receive documents confirming citizenship. The entire process can take anywhere from six months to two years, during which time the applicant remains wholly without legal documentation. Faced with a long, costly, and uncertain path, many seeking to confirm their citizenship abandon the process before their cases reach completion. Given the complexity of the process, legal counsel is necessary in all but the simplest of cases.
Broadly, when an individual has no means to prove their citizenship they are, upon final determination, stateless under prevailing international standards as well as the law of Ukraine. This is because it is the “operation of the law”—how legal processes function in practice to grant or deny citizenship—that determine whether an individual has citizenship. Accordingly, an individual who was born in the territory of Ukraine and lived their whole life there may be stateless if the relevant authorities determine that the individual cannot prove their citizenship, and is not a citizen of another nation. This form of statelessness is one iteration of statelessness in situ, or statelessness in a non-migratory context. Such scenarios underscore the fact that it is not only citizenship-stripping or state succession that fosters statelessness; indeed, administrative inefficiencies can create stateless populations.
A lack of documentation has dire consequences for affected individuals. In Ukraine, undocumented individuals may not obtain healthcare, vote, open a bank account, register a marriage, or, in certain instances, proceed beyond primary education. Labor exploitation and police harassment of undocumented Ukrainians are commonplace in territory under Ukrainian control. In the NGCA, there have been reports of children without documents subject to mandatory military service and other forms of forced labor. Moreover, those with no identification documents may not travel internationally or, within Ukraine, cross the line of contact that separates the NGCA from the territory under Ukrainian control. Amid quarantine measures, they may even have difficulties crossing between Oblasts, as inter-Oblast travel may require a proof of COVID-19 vaccination, and one needs identification to receive COVID-19 vaccination.
II. Obstacles to Documentation Arising from the Occupation of Ukrainian Territory.
Ukrainian state organs and NGOs—notably R2P, UNHCR, Desyate Kvitnya, and Neeka—are making progress to combat statelessness in situ. In 2020 the Ukrainian Parliament brought into force a statelessness determination procedure that provides for recognition and a path to citizenship for stateless individuals. But factors arising from the occupation in Eastern Ukraine threaten to undermine this progress, and create a large and self-perpetuating phenomenon of statelessness.
For children born in occupied Eastern Ukraine, the problem lies first with obstacles to birth registration. Ukrainian state organs do not consider birth certificates issued at hospitals in the NGCA, despite 2018 legislation that makes it lawful to do so. Rather, to acquire a valid birth certificate, representatives of a child born in NGCA must cross into government-controlled territory, apply to register the birth with the civil registry, receive a rejection for that application and, with the NGCA-issued birth certificate and registry rejection in hand, file an application with a court demanding that the court issue an order recognizing the child’s birth. With that order, the representative may obtain a birth certificate for their child from the civil registry, which may, in turn, serve as the basis for the issuance of a Ukrainian passport when the child turns 14.
Results indicate that this process is not wholly effective—around 69,400 children born in the NGCA remain unregistered. A number of practical considerations likely underlie this. The current process requires a child’s representative to cross hours of checkpoints and an intensely militarized internal division, and pay for several days of accommodation while the process runs its course. This in itself is a prohibitive obstacle to many parents in the NGCA, where seven years of war has shattered residents’ economic prospects, and military escalations along the line of contact are frequent and unpredictable.
Next, a child’s representatives themselves need a Ukrainian passport to cross the line of contact. As this article explores in more detail below, unknown but likely significant numbers of NGCA residents lack Ukrainian passports. In these cases, the risks of statelessness threaten to compound, as an individual’s lack of documents restricts their movement, which, in turn, denies them the ability to secure Ukrainian nationality for children in their care.
The causes underlying the risk of statelessness among adults living in and originating from the NGCA are more individualized. Many people living in the NGCA lacked the means to prove their citizenship to begin with, and many more lost their documents as a result of military operations. As noted above, these people may not cross the line of contact in order to confirm their citizenship or obtain statelessness status.
For individuals from the NGCA residing in territory under control of the Ukrainian government and seeking to confirm their citizenship, the typical obstacles—varied procedures and forms of acceptable evidence, lengthy processing times, and gaps in legal education among local authorities—apply. But these people must also contend with additional practical and procedural hurdles. For one, evidence for proving their citizenship is likely to be in NGCA territory, and therefore inaccessible to adjudicators. In addition, certain SMS practices apply in a discriminatory manner to NGCA residents. In particular, NGCA residents must undergo the lengthy process of establishing their identity in a territorial unit of the SMS when repairing or renewing their passports.
Finally, Russia’s program of passportisation—in which it issues passports to NGCA residents under an expedited procedure with no residency requirement—adds another layer of complexity. Scholars dispute the legality of this program. And even if passportisation is unlawful as a matter of nationality or human rights law, it is unclear that this would render null Russian nationality acquired through passportisation.
Those issues aside, Russian passportisation introduces a functional risk of statelessness for NGCA residents who have acquired Russian citizenship and lack the means to prove their Ukrainian citizenship, or have renounced Ukrainian citizenship as a condition of acquiring a Russian passport. The Ukrainian government has stated that it considers passports issued to NGCA residents under the expedited procedure to be unlawful; accordingly, Ukrainian border agents do not recognize these passports at ports of entry. Indeed, passports issued under the expedited procedure bear certain distinctions—most glaringly, they lack a place of registration—that render them ineffective as national identification. Therefore, just like more obviously undocumented individuals, NGCA residents who acquire passports through the expedited procedure will likely have trouble regularizing their status and obtaining the benefits of nationality outside of Russian territory.
III. Ukraine’s Legal Obligations to Register Births and Extend Effective Nationality to Citizenry Under Occupation.
With the status of hundreds of thousands of its de jure citizens in limbo, legal considerations dictate a more aggressive course of action to document NGCA residents. The law has yet to speak directly on the obligation of an occupied power to provide access to citizenship and birth registration to de jure citizens under occupation. But, tracing the logic of treaties and case law, one may extrapolate that such an obligation exists, subject to limitations deriving from the state’s loss of effective control over the territory in question.
Ukraine retains a residual obligation to protect the rights of individuals within its de jure jurisdiction. Ukraine’s lack of effective control over the NGCA limits these obligations to those “diplomatic, economic, judicial, or other measures that” are “in its power to take and are in accordance with international law to secure” the rights of citizens within its jurisdiction. To determine whether a nation discharges its obligations to protect the rights of citizens under occupation, the European Court of Human Rights (“ECtHR”) has stated that it will assess, in light of on-the-ground circumstances, “to what extent minimum effort was nevertheless possible and whether it should have been made.”
The risks of statelessness facing NGCA residents, moreover, imply a number of fundamental rights. Article 15 of the Universal Declaration on Human Rights enshrines the right to nationality as a basic human right. A number of Ukraine’s treaty obligations, most notably those derived from the 1954 and 1961 Conventions Relating to Stateless Persons and On the Reduction of Statelessness, impose positive obligations to reduce statelessness. Birth registration is also a fundamental right under Article 7 of the Convention on the Rights of the Child and Article 24, paragraph 2 of the International Covenant on Civil and Political Rights.
More concretely, the ECtHR has repeatedly ruled that an arbitrary failure to provide documentation to citizens may constitute a violation of the right to private and family life, as contained in Article 8 the European Convention of Human Rights. Violations need not be the result of official policy; administrative inefficiencies and errors may underlie the arbitrary denial of documentation. This is particularly so when authorities are aware of the scope of the problem and fail to act. Moreover, “the loss of both employment and the opportunity to find new employment or receive a pension…the loss of medical and other types of social security and the opportunity to obtain travel documents and register a marriage” is sufficient to create a violation of Article 8. In the context of occupation, finally, the ECtHR has stated that the provision of national identification cards may be a minimum function of displaced governance.
Connecting these realms of law, one may extrapolate a legal framework in which an occupied power must take “diplomatic, economic, judicial, or other measures that” are “in its power to take” in order to ensure access to citizenship and birth registration for de jure citizens living under occupation. A state’s arbitrary failure to do so may constitute an Article 8 interference with private and family life if it results in a substantial reduction in economic, social, and medical benefits. Moreover, discriminatory and otherwise ineffective procedures may constitute an arbitrary failure to provide documentation, particularly when the state is on notice that procedures are ineffective and fails to rectify them.
Through this construction, Ukraine must do more in order to provide access to citizenship and birth registration to NGCA residents. As noted above, a lack of documentation in Ukraine deprives affected individuals of freedom of movement, as well as employment opportunities, healthcare, and secondary education. In addition, the relevant Ukrainian authorities should be on notice of the scale of the problem; NGOs and legal observers have repeatedly sounded the alarm as to the ineffectiveness of policies for documenting NGCA residents. Statistics on birth registration in the NGCA are surely known to responsible officials.
The Ukrainian government has, furthermore, not made efforts to document its citizens that are “within its power to take” subject to the loss of de facto control. Ukrainian law allows government organs to accept as direct evidence birth certificates issued by hospitals in the NGCA. But the Rada has yet to issue administrative procedures that would empower relevant agencies to implement this change. Passing such a measure is well within Ukraine’s power as an occupied state, and should therefore constitute “minimum effort” required to combat statelessness in the NGCA. Upon the passage of these measures, the government may place services for civil registration along the line of contact, so as to minimize the burden on representatives seeking to obtain a Ukrainian birth certificate.
The Rada may take an analogous step to facilitate the documentation of adult NGCA residents who lack documents by empowering the SMS to consider NGCA civil documents that prove an individual’s identity and/or citizenship. In addition, the SMS itself may exercise its administrative latitude to introduce a simplified procedure for the issuance of documents to NGCA residents. This may involve expedited processing, the acceptance of notarized written testimony in lieu of live testimony, and/or the issuance of provisional travel documents that allow undocumented individuals to cross the line of contact in order to confirm their legal status in Ukraine. The SMS may also, as a first order, eliminate practices that apply in a discriminatory manner to NGCA residents.
The Ukrainian government has yet to deploy a number of measures that are “in its power to take and are in accordance with international law to secure” the fundamental rights of its citizens to documentation. It is likely on notice that its current procedures are ineffective with respect to NGCA residents. Moreover, the denial of documentation has dire consequences in the personal lives of affected individuals. Accordingly, the Ukrainian government has likely not fulfilled its obligations under treaty and ECtHR case law to provide access to citizenship and birth registration for NGCA residents.
In the absence of effective nationality, an individual loses access to life-saving services, and the state loses effective ties to its de jure subjects. The maintenance of effective Ukrainian nationality for the residents of the NGCA is, therefore, a humanitarian tool, as well as omnibus for maintaining the integration of citizens living under occupation. At present, Ukraine has likely not made the “minimum effort” possible required to protect the rights of its citizens under occupation: more is possible and, likely as a matter of law, necessary. As the occupation drags into its seventh year, and COVID-19 measures render national identification even more vital as a matter of health and freedom of movement, this necessity becomes still more pressing.
 Law of Ukraine on Citizenship of Ukraine № 2235-III of January 18, 2001.
 Note: assertions regarding citizenship confirmation procedures are supported by information acquired through interviews with practitioners in the field and affected individuals.
 See Law of Ukraine on Amending Certain Legislative Acts of Ukraine regarding Recognition as a Stateless Person №693-IX of 16 June 2020 (defining a stateless person as one who is not considered a national by any state under the operation of law); Convention Relating to the Status of Stateless Persons, 1954, Articles 1(1) (same).
 Law of Ukraine on Amending Certain Legislative Acts of Ukraine regarding Recognition as a Stateless Person №693-IX of 16 June 2020.
 See, e.g. Passportisation: Risks for international law and stability – Part I; Passportisation: Risks for international law and stability – Part II (arguing that Russian passportisation in the Donbass is unlawful as a matter of nationality law); Passportisation: Risks for International Law and Stability – Response to Anne Peters (disputing that Russian passportisation is unlawful as a matter of nationality law, but considering that it may be unlawful as part and parcel of a breach of an international duty).
 See UNHCR Handbook on Protection of Stateless Persons, para. 45 (observing that “[w]here the action of the competent authority in a non-automatic mechanism is undertaken in error (for example, because of a misunderstanding of the law to be applied) or in bad faith, this does not in itself invalidate the individual’s nationality status so acquired”).
 See Catan and Others v. Moldova and Russia, para 109; Ilascu and Others v. Moldova & Russia, para. 333: Ivantoc and Others v. Moldova and Russia, para 101.
 Ilascu and Others v. Moldova & Russia, para. 331.
 Id. para. 334.
 See Smirnova v. Russia, para. 98-100 (holding that the Russian government’s unlawful withholding of the applicant’s passport constituted an interference with the right to privacy and family life); Alpeyeva and Dzhalagoniya v. Russia, para 126 (same); see also Kuric and Others v. Slovenia, para. 346 (asserting that, as part of Article 8, there “may be positive obligations inherent in effective respect for family life”).
 See Alpeyeva and Dzhalagoniya v. Russia, para. 125-26 (Holding that an arbitrary deprivation of the right to privacy and family life occurred owing to Russian authorities “mishandling of procedures” concerning citizenship, even when, at the time, “the authorities may have been considered to have acted appropriately”).
 Id. para. 77.
 See Ilascu and Others v. Moldova & Russia, para. 179 (“The Moldovan Government’s information department issues identity documents (identity cards) to all persons resident in Moldova, including those in Transdniestria”).
 Ilascu and Others v. Moldova & Russia, para. 331.
 See, e.g., Ukraine’s most vulnerable children deserve a passport, too; Statelessness in Ukraine: Scopes and Causes; Locked in Limbo: Child Statelessness and Human Trafficking in the Non-Government Controlled Areas of Ukraine.
 Ilascu and Others v. Moldova & Russia, para. 331.